Dáil Éireann debate -
Thursday, 28 Feb 2002

Vol. 550 No. 1

Members' Code of Conduct: Motion.

Mr. Killeen:

I move:

That Dáil Éireann, having regard to the Report of the Committee on Members' Interests of Dáil Éireann on a draft Code of Conduct for the Members of Dáil Éireann, which was laid before the Dáil on 1st May, 2001, and noting the legislative requirements of section 10 of the Standards in Public Office Act, 2001, adopts the following Code of Conduct for Members of Dáil Éireann other than office holders:

Recommended Code of Conduct for Members of Dáil Éireann other than Office Holders.

Preamble

Members of Dáil Éireann other than office holders (referred to hereafter as "Members") recognise that it is in their individual and collective interest to foster and sustain public confidence and trust in their integrity as individuals and in Dáil Éireann as an institution. To this end, Members should at all times be guided by the public good and ensure that their actions and decisions are taken in the best interests of the public.

Members are in the unique position of being responsible to the electorate which is the final arbiter of their conduct and has the right to dismiss them from office at regular elections. Accordingly, and as a matter of principle, individual Members are not answerable to their colleagues for their behaviour, except where it is alleged to breach the obligations to answer to them which have been placed on Members by law, by Standing Orders or by Codes of Conduct established by the House.

To this end and in exercise of the powers conferred by Article 15.10 of the Constitution, the Members have adopted this Code of Conduct, the purpose of which is to assist Members in the discharge of their obligations to the House, their constituents and the public at large, without, however, trespassing into areas where Members more properly submit themselves to the judgment of their electors rather than the jurisdiction of this House.

Code

1.Members must, in good faith, strive to maintain the public trust placed in them, and exercise the influence gained from their membership of Dáil Éireann to advance the public interest.

2. Members must conduct themselves in accordance with the provisions and spirit of the Code of Conduct and ensure that their conduct does not bring the integrity of their office or the Dáil into serious disrepute.

3. (i) Members have a particular obligation to behave in a manner which is consistent with their roles as public representatives and legislators, save where there is a legitimate and sustainable conscientious objection.

(ii) Members must interact with authorities involved with public administration and the enforcement of the law in a manner which is consistent with their roles as public representatives and legislators.

4. (i) Members must base their conduct on a consideration of the public interest and are individually responsible for preventing conflicts of interest.

(ii) Members must endeavour to arrange their private financial affairs to prevent such conflicts of interest arising and must take all reasonable steps to resolve any such conflict quickly and in a manner which is in the best interests of the public.

5. (i) A conflict of interest exists where a Member participates in or makes a decision in the execution of his or her office knowing that it will improperly and dishonestly further his or her private financial interest or another person's private financial interest directly or indirectly.

(ii) A conflict of interest does not exist where the Member or other person benefits only as a member of the general public or a broad class of persons.

6. Members may not solicit, accept or receive any financial benefit or profit in exchange for promoting, or voting on, a Bill, a motion for a resolution or order or any question put to the Dáil or to any of its committees.

7. Members must fulfil conscientiously the requirements of the Dáil and of the law in respect of the registration and declaration of interests and, to assist them in so doing, should familiarise themselves with the relevant legislation and guidelines published from time to time by the Committee on Members' Interests and the Standards in Public Office Commission as appropriate.

8. (i) Members must not accept a gift that may pose a conflict of interest or which might interfere with the honest and impartial exercise of their official duties.

(ii) Members may accept incidental gifts and customary hospitality.

9. In performing their official duties, Members must apply public resources prudently and only for the purposes for which they are intended.

10.Members must not use official information which is not in the public domain, or information obtained in confidence in the course of their official duties, for personal gain or the personal gain of others.

11.Members must co-operate with all Tribunals of Inquiry and other bodies inquiring into matters of public importance established by the Houses of the Oireachtas.'

Mr. Howlin:

Is it not normal for a member of the Government to be present?

Mr. Killeen:

The code has been under consideration for a considerable period. The Dáil, the Seanad and a great many professional bodies have been looking at introducing codes, indeed some professional bodies have had codes in place for quite a long time, as have many parliaments throughout the world. The above code refers to Members of the House, other than office holders, and I pay tribute to my committee colleagues for the work they put in over a long while in the preparation of it.

We worked from a draft code which was put before the House initially in February of last year as part of a Labour Party motion. Subsequently, the draft code was referred to the Committee on Members' Interests on 7 February and it was that committee which has produced this code. In so doing, the committee sought submissions from each Member and a number of individuals were forthcoming. The committee also sought submissions from the political parties and the Green Party, the Labour Party, Fine Gael and Fianna Fáil all contributed on 12 April last year. A debate took place at that time. The committee then proposed a draft code of conduct with a considerable amount of attendant material and put it before the Dáil on 4 May last year. The adoption of the code was provided for with the introduction of the Ethics in Public Office Act, 2001 on 10 December. The committee was required to formally move this motion today based on that. In the meantime it has consulted with the Standards in Public Office Commission with regard to the code's content.

The committee was faced with a number of options when it was considering how it might draw up a code. One such option was that the code function as a general guide for Members and that is what the 2001 Act provided for. Some were of the view that a code should be extremely prescriptive and detailed, but one of the difficulties of going down that road is that it is hard to prepare an exhaustive code. It was decided that the legislation clearly provided for a code which would act as a guide. On that basis, the committee brings this proposal before the House.

We are all aware of the backgrounds to demands in many fora and among the general public for a code of conduct and ethics legislation. We have seen that the alleged wrongdoing of decades has been paraded in public fora and tribunals during a relatively short period of time. Aside from that, there is a genuine belief among Members that there is a need for the system to be open to reasonable scrutiny and accountability, and the code provides specifically for that. It is there to assist Members to discharge their duties while acknowledging that there are areas where Members should more properly submit themselves to judgment by the electorate. That is a very important point and one which should be borne in mind in the context of the code.

The proposal to impose penalties for breaches of the ethics legislation enacted between 1995 and 2001, has been raised recently. There have, in fact, been considerable changes made by the 2001 Act which effectively begets this code of conduct. Among those changes is the provision that a Member suspended from the House may suffer a financial penalty. That was not the case under the 1995 Act. While the code is fundamentally and specifically a guide, it is clear that breaches of the code would likely be breaches of the 2001 Act also and would be dealt with in the normal manner provided for since the 1995 Act came in.

Section 10(7) of the 2001 Act provides that a person to whom the code applies shall, in so far as is relevant, have regard to and be guided by the code in the performance of his or her functions and in relation to any matters to which the code relates. That is a fairly wide provision defining how and in what circumstances the code applies. The level of complaints against Members which is possible is very clear from the legislation and the punishments which might be meted out are considerably expanded. The code sets out in clear and brief terms what is expected of Members. It contains 11 points, which I am sure Members, a number of whom took the chance to make their own submissions, have had the opportunity to peruse. I thank those Members who took the trouble to contribute. A number of the suggestions from Members and parties were considered carefully by the committee and they formed part of the report which was presented to the Dáil on 1 May last. A number of the suggestions considered then bear repeating.

The manner in which the code would be a regulatory regime was examined in some detail and the question of apparent conflicts of interest was very carefully examined. The committee agreed that it was unjust to require Members to be accountable and subject to penalty because of a perception by others that there is a conflict of interest where no such conflict exists. That is a fair position to take. For that reason apparent conflicts of interest, which frequently appear to cause trouble, have been excluded from the code. However, provision No. 6 is quite wide ranging.

We also considered the extent of legitimate public scrutiny of private affairs in the contexts of the code and the legislation. The committee took the view that provision No. 9 was initially too broad and open to all kinds of misinterpretation. It drafted a new provision which clearly sets out what part of one's private affairs can legitimately be considered in the context of public activity.

A number of people raised the question of whether or not individuals should be amenable to the provisions of the legislation in relation to past events and, on foot of legal advice, the committee took the view that no such provision could be made. There was also a considerable debate on the element of the code which refers to the application of public resources. That area has been covered in the code in a way not done previously in any other code or in regulations of the House.

An extremely interesting point in the debate came when submissions were being made by various parties regarding the manner in which Members should uphold the law and co-operate with public bodies. The point was made very strongly by a number of those making submissions that there were many occasions when the duty of the elected public representative was not to co-operate with public bodies but to subject to questioning the manner in which particular policies were being pursued and in which particular Departments or other bodies were undertaking their work. The committee addressed that in the code taking very careful account of the fact that there may well be a very substantial number of occasions when Members of the Oireachtas are required to take particular stands which, to some extent at least, put them in conflict with certain public bodies although they are clearly within the law. We provided for that in so far as it is possible to do so.

There were other areas which did not fall to the committee to consider at this stage, such as when it might be possible or necessary, or in what manner it would be desirable, to amend the code in the future. No doubt there will be circumstances and occasions in the future which will lead people to feel that the code needs to be amended. It is not for the committee to say how that should be done. It is really a matter for future legislation to provide for that.

For the moment, the committee has very carefully considered the draft code which was placed before it. It has taken on board the order of the House of 7 February 2001, made its report on its draft code of conduct on 1 May 2001 and considered submissions by the Standards in Public Office Commission. Having considered the views expressed by the commission, individuals and parties, the committee commends this code to the House.

Mr. J. O'Keeffe:

On behalf of Fine Gael, I support this motion. In accordance with the spirit of the code of conduct, I suppose I should declare an interest because I was a member of the committee which drafted the code.

Hopefully we have come to the end of a period during which, quite frankly, politics have been brought into disrepute. I hope we now have the dawning of a new year and that that dawn will be all the brighter because we have put in place this code of conduct. Of course adherence to that code by all Members in the future will help to ensure that that dawn will be perpetual.

Some may criticise us for the fact that the code is expressed in rather general terms. We thought long and hard about how best to do that. We felt that rather than have a detailed and prescriptive code, it was better to lay down broad principles and to expect Members to adhere to those. Therefore, there is a considerable focus on the need to maintain the public trust in Members elected to this House to ensure the integrity of the House is maintained and not brought into disrepute; that Members of the House try to ensure as far as possible that everything they do is consistent with their duty as public representatives; that there is no personal gain and that, in so far as there is any conflict of interest, it is a matter for the Member to resolve that conflict of interest. From that point of view we have laid down a broad series of measures in this code. No doubt if it is fully adhered to, in the future we will not have the kind of difficulties we have had in the past. We also make it clear that public resources must be used prudently and that Members will not use information obtained in an official capacity for their personal gain. It is important to note that the code provides that Members must co-operate with all tribunals of inquiry and other bodies inquiring into matters of public importance established by the Houses of the Oireachtas. From that point of view, the code is part of a new beginning.

On the question of penalties, it may be a little difficult for the House and, indeed, the general public to understand the rather complex route through which penalties will be applied. When the committee examined this issue initially and compiled a report on the Labour Party motion, we recommended the attachment of specific penalties for breach of the code. That recommendation was not adopted by the Government in the 2001 Act. I can see that one could argue quite coherently as to why one should not have direct penalties, but in one sense this leaves a lacuna as to what happens when the code is breached. We examined this carefully. We thought of recommending that standing orders be adopted to cover penalties but, for a variety of reasons, we decided that would not be the best course of action.

Our current position on penalties is that there is a new offence in the 2001 Act which introduces an entirely new area of accountability in respect of the carrying out of an act or omission inconsistent with the proper performance by a person of the functions of his or her office or inconsistent with the maintenance of confidence in such performance by the general public. That is a general area about which a complaint can be laid against a Member. Our view is that the code of conduct will be the yardstick or benchmark against which performance will be measured to see whether a person is guilty of that new offence. On that basis, one can fairly say that the penalties provided for breaching that particular section are those which apply for breach of the code of conduct. It is a somewhat indirect way of providing for it but, in the light of the way the legislation is framed, it is the best assurance I can offer at present. Therefore, the kind of penalties which will apply under the new section will be the same as those which apply for the offences for non-declaration of interest etc. under the 1995 Act. Those penalties range from a report to the House involving noting or censure or suspension up to 30 days – it is now a month – but the new Act also provides that there can be loss of salary and payments during that period. That is where we stand on the code.

Returning to my first point, this, I hope, fully marks the end of one era and the beginning of a new one. We should be prepared at all stages to re-examine the code, to see what is happening in other countries, to test it by experience and to review it as required. It is a little presumptuous of me to say we should be very open to do that in the new Dáil. I should say that those who are involved in the next Dáil should be quite prepared to do that.

I should also say I would be very anxious – I hope it is not my legacy – that the ethics legislation would be reviewed by the next Dáil. Frankly I am not happy about the way it is drafted at present. In fact, the way in which this new offence is framed in section 4 of the 2001 Act is quite crazy. It actually specifically excludes non-officeholders and ordinary Members are added back in by reference to a schedule.

Mr. Howlin:

The Second Schedule.

Mr. J. O'Keeffe:

It is quite complex and somebody defending a Member on a complaint under the Act would have plenty of legal ammunition. Its potential loopholes should be tied up; I would certainly very much like to see the matter re-examined and reviewed early in the next Dáil.

I hope we are at the beginning of a new era in which politics will not be brought into disrepute in any way, but there is a danger – perhaps it is not politically correct to say it – that one can go overboard from the point of view of corruption commissions and offences against Members. We examined the position in Sydney in New South Wales where they had huge difficulties from the point of view of corruption and allegations of corruption, as a result of which an anti-corruption commission was established. We, the members of the committee, met the members of that commission and, frankly, I thought it had gone totally overboard. They had a permanent commission with 121 employees and an annual budget of $15 million solely directed at trying to root out corruption. The trouble was that when they could not find corruption as we know it in the ordinary sense, they were poking under stones and accusing people who made small mistakes in filling out forms of being corrupt. There is a danger one can go overboard in this area.

We need to encourage new blood to enter politics and must do so on the basis of trying to have the highest standards. The code of conduct will help to show the level of standards to which we aspire. However, if Members are tied up in regulations and there is a sword of Damocles hanging over their heads to the extent that they can be subject to public odium, censure by the House or worse for the slightest mistake in filling out a form, people will not be prepared to subject themselves to this.

My plea is for balance. Obviously, I want to see high standards to which the code we will adopt will contribute. However, we should be a little cautious. If there are leading articles in newspapers demanding that public representatives be put on trial for various matters, we should be careful, balanced and strong about what we do to ensure we have high standards and that, as a regulatory body, we insist on them. The test for us will be to ensure the standards laid down in the code of conduct and which we will adopt are maintained.

Mr. Howlin:

I also declare my membership of the Committee on Members' Interests of which I am privileged to be a member. It is probably the smallest working committee of the House having only five members. It is also unique in that it has an Opposition majority. It has enabled me to have an overview of the workings and minutiae of the House in a way one would probably not get unless one were a party Whip. It is a committee of which I will not be queuing up to be a member in the next Dáil, assuming I am returned as a Member.

Mr. J. O'Keeffe:

Same here.

Mr. Howlin:

That is because it is a very difficult and onerous task to try to be the internal watchdog of standards in the House. It is also a great privilege. None of the five members would set himself up as a paragon when sitting on judgment on anyone else. It is an extremely difficult job to do when complaints are referred to us for investigation and determination.

I pay tribute to Deputy Killeen from whom I have learned a great deal. He is an extremely fair and hard-working Member of the House. All the colleagues with whom I worked – Deputies Jim O'Keeffe, Browne and Brendan Smith who left the committee to be replaced by Deputy Flood – have given an enormous amount of valuable time and common sense opinions from which I have learned and for which I am grateful to them.

The issue of ethics and standards is relatively new in terms of legislation. We have always held that this country was very fortunate in terms of public administration, unlike others to which we often referred, in that we did not have major scandals of public corruption. Unfortunately, the recent tribunals have uncovered disquieting aspects of public administration in this country. A wind of change has blown through public administration at every level, not only in the Houses of the Oireachtas, but also in administration in the Civil Service, at local government level and across all aspects of public life. I hope it reaches further. Some of the developments relating to the Garda Síochána and the Judiciary will make for the more accountable public administration system the public demands. All this places a terrible burden on us all. Even the constant filling of declaration forms, which we sometimes find intrusive, is the price we have to pay for getting the balance right in terms of public confidence in administration.

The genesis of the motion was that we would find for ourselves a code of conduct to which each to the best of his or her ability would try to live up. The Labour Party drafted a draft code of con duct and presented it to the House in February last year. The House stated it wanted a code and set the committee the task of devising a perfected one. The chairman, Deputy Killeen, went through the detail of the submissions. It is worth it for every Member to read the report. The individual comments of experienced Members, such as Deputy O'Malley, the Minister for Defence and others, to the committee are worth reading because there are practical issues when requirements are laid down in black and white.

For example, we were all animated by the issue of an obligation on us all to support and help public inquiries, bodies or tribunals. However, there are times when public bodies should not be co-operated with when we suspect they are working against the public interest. We drafted the code to appreciate the nuances of our job as a public watchdog and not to try to set pitfalls. The report makes interesting reading in that it tries to balance the requirement for transparency in our actions while not spancelling our proper work as tribunes of the public to oversee public administration, to act sometimes as whistleblowers and often to receive documentation, for example, as I did in recent weeks as spokesperson on justice. The documentation related to Garda figures which required me to bring the information into the public domain. We have unique roles and are trying to achieve a balance which we have in the model recommended to the Dáil for approval.

Some of the standards are very high and some will have to be interpreted. Members may ask what is the status of the code of conduct. The original code had no status other than a guideline. However, the one we bring forward today has status because, under the 2001 Act, which is now law, this code will be the yardstick by which our conduct will be judged by the Committee on Members' Interests of the future. We also recommended that we change the name because many think the Committee on Members' Interests deals with the restaurant. We wanted it to be the Standards and Ethics Committee in Dáil Éireann. It would be good if that change were made also in order that people would understand we do not exist to look after Members' interests in terms of the facilities of the House – there is a committee to do that – but that we are one of the few statutory committees established under law to ensure Members comply with statutory provisions relating to alleged breaches of the Ethics in Public Office Acts.

Sanctions will be applied to breaches, not necessarily for direct breaches of the code of conduct, but the code can be the yardstick by which it can be determined whether a breach of the 2001 Act relating to duties of a Member has occurred. The committee which would adjudicate on this would use the code as a yardstick. It is, therefore, important that Members are familiar with, understand the import of and adhere to the 11 points laid out in the recommended code of conduct which I hope will be adopted by Dáil Éireann. Some are onerous obligations and it is important that we understand and try to comply with them to the best of our ability. It is also important that standards are not set too high and that we do not include in a code of conduct obligations which cannot be complied with. A common sense attitude is something which has characterised the deliberations of the committee of which I am a member.

A better regime is now in place for Members. It is important that we know where we stand and what we have to do. We should know there is a requirement for us to be transparent in our actions and not to act in a way which advances ourselves rather than the general public interest. By way of conditioning people to the work of Deputies, Members could do worse than read the preamble to the code of conduct. It is a good reference for us all in terms of understanding exactly what is our job.

While the code of conduct is for Members of the House, there will be a more onerous code of conduct for officeholders who, by virtue of their office, have even higher standards to which to adhere. I welcome the presentation of the code of conduct and I hope and believe it will be unanimously accepted by the House. I look forward to the strengthening of public confidence in the Administration in an open and transparent fashion in future.

Mr. J. Mitchell:

I am not satisfied with the code of conduct because it is not as complete as it should be. I will return to that aspect later. I also want to raise the internal mechanisms of the House which are not being used. I refer in particular to the role of the Committee on Procedure and Privileges. A big omission in the code of conduct is not making it an offence for Members to make allegations publicly against fellow Members without first reporting the matter to the Committee on Procedure and Privileges, the Committee on Members' Interests or the commission. The current problem with politics as a profession is not just that a small number of our class misbehaved very badly a number of years ago, but that on virtually every occasion there is a report about some new found fact or allegation, it becomes the subject of political charge and counter charge inside and outside the House.

The code of conduct is a once-off chance to remedy that situation. As chairman of the DIRT inquiry and following legal advice, I wrote to the leaders of all the parties, the Whips, every Member of the Oireachtas, the Ceann Comhairle of the Dáil and the Cathaoirleach of the Seanad pointing out that an inquiry by a committee of the House could be prejudiced if, after every hour's evidence, people were to quickly jump to conclusions and raise questions in the form of innuendo and inference and that the inquiry itself could be challenged on the basis that members of the inquiry could be influenced by these inferential questions or charges. Following that letter, there was just one early minor breach of the request that there should be no such comment. This was not repeated and there were no further charges, counter charges or queries of an inferential nature.

I hoped in drafting the code of conduct that the committee would have deemed it an offence for one Member to publicly raise queries about the conduct of another Member. I proposed a format where Members should first make a complaint about the conduct or declarations of another Member of this House to the appropriate body which would then investigate the complaint impartially and privately and come to a conclusion. No such provision is included in the code of conduct. I raise this issue because I have been the victim of such queries about my declarations of interest, queries which had no ethical or factual basis whatsoever. A political football was made of my declaration. Many people egged me on to raise counter queries about other people's declarations, which I rejected out of hand because that is exactly what I am fighting against.

If we are concerned about the profession of politics, we should prevent charges of a purely political nature being made against individuals and provide a format where genuine queries can be investigated impartially – as happened in the case of the former Minister of State, Deputy Ned O'Keeffe – findings reached and necessary action taken. This aspect is omitted in the code of conduct. I urge at this stage that it be deemed an offence in the code of conduct for a Member to raise publicly for political reasons unfounded charges or queries, however framed, about the declarations or behaviour of another Member. A format should be laid down where a Member who has a genuine query to raise about the ethics or behaviour of another Member has a proper and appropriate forum in which to do so. If we do not address this issue, this type of problem will occur in the future. Even at this late stage, consideration should be given to an additional section in the code of conduct to cover this aspect. Otherwise we will all live to regret it. Innocent sounding questions can easily tarnish, raise doubts or create enough smoke to ruin another person's reputation, even though there is no basis for the queries in the first instance.

In the recent past we have had to deal with the problems surrounding Deputy Lawlor, the former Minister of State, Deputy Ned O'Keeffe and Deputy Foley. These issues were dealt with by way of exchanges across the House. When I first came to this House such issues were dealt with in private by the Committee on Procedure and Privileges. What has happened to this committee? Has it completely abandoned its role? Surely the Committee on Procedure and Privileges should be the master of the House in terms of ethics, procedures and privileges and breaches of them. That is how things always were, but, for one reason or another, that committee does not seem to be operating. This is why there is a need for a Committee on Members' Interests, including other formats and fora. We have ended up with a very splintered set of mechanisms, some of which are in conflict with each other. It is a great pity that a committee whose purpose I always believed was to uphold standards in this House and ensure there were no breaches of ethics, procedures and privileges, but that if there were such breaches, appropriate action would be taken, has broken down. We have seen so many instances of it in past months. We had Deputy Gildea's allegation against Deputy Owen. Was that ever referred to the Committee on Procedure and Privileges?

It is not many years since I made a factual speech, not one word of which was untrue, concerning a potential conflict of interest. I was forced to make a speech in this House that I did not agree with. I was forced because of pressure from the Government, the Committee on Procedure and Privileges, etc. It was not my speech but a speech I was permitted to make by the Committee on Procedure and Privileges. The point was that the Committee on Procedure and Privileges had that power, authority and role in the past. However, now we have had very serious misbehaviour by some Members, which was not dealt with by this proper process but by allegation and pressure across the House. We had the Deputy Gildea incident and the disreputable behaviour of Deputy Roche in making political footballs out of honest declarations, without the slightest mechanism for having him arraigned and dealt with. These are significant lapses. I doubt that the code of conduct, into which a lot of work has been put by the committee, will have any real effect unless there is the will and determination at the highest level to implement it and ensure it is observed.

I am glad of the opportunity to make these few remarks. If there was an effective mechanism in both Houses to deal with breaches of privilege and ethics, there would be a much lesser need in the future for tribunals. We all should be ashamed that there has been a need for so many tribunals which, because of their long, draw-out nature, have in the eyes of many become a scandal in themselves.

An Ceann Comhairle:

Since there is no other speaker offering, I will suspend the sitting until 3.30 p.m.

Mr. J. Mitchell:

Is there any mechanism by which this code can be amended?

Mr. J. O'Keeffe:

There is a mechanism in the Act. I understand the point raised by Deputy Mitchell and his concern over it. As it stands, a complaint under the new section 4 of the 2001 Act might be a basis for dealing with it. I hope and expect that there will be a continuous review process of the code, particularly in the early days of next Dáil.

Question put and agreed to.

Sitting suspended at 3.15 p.m. and resumed at 3.30 p.m.